Citation Nr: 1117489 Decision Date: 05/06/11 Archive Date: 05/17/11 DOCKET NO. 09-03 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss and if so whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from August 1962 to August 1964. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In August 2004, the Ro denied servicer connection for bilateral hearing loss and for tinnitus. The Veteran was so informed that same month. 2. The Veteran did not timely appeal the decision. 3. Evidence added to the record since the final denial of entitlement to service connection for bilateral hearing loss in August 2004 includes evidence that was not previously before agency decision makers; the evidence relates to an unestablished fact that, when considered with all the evidence of record, raises a reasonable possibility of substantiating the claim. 4. Evidence added to the record since the final denial of entitlement to service connection for tinnitus in August 2004 includes evidence that was not previously before agency decision makers; however the evidence does not relate to an unestablished fact that, when considered with all the evidence of record, raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2004 decision that denied the Veteran's claim for service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). 2. New and material evidence has been received to reopen the claim for service connection for bilateral hearing loss. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). 3. The August 2004 decision that denied the Veteran's claim for service connection for tinnitus is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). 4. New and material evidence has not been received to reopen the claim for service connection for tinnitus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). As to the issue regarding new and material evidence for the claim for service connection for bilateral hearing loss, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. As to the claim for tinnitus, in claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, the notice letter provided to the Veteran in March 2008 included the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claim was previously denied. Consequently, the Board finds that adequate notice has been provided, as he was informed about what evidence was necessary to substantiate the elements required to establish service connection that were found insufficient in the previous denial. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO obtained VA treatment records and the Veteran submitted private treatment records. Further, he was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. A specific VA medical opinion is not needed to consider whether the Veteran has submitted new and material evidence but, rather, the Board has reviewed all the evidence submitted to the claims file since the last final denial. Therefore, a remand for a VA opinion is not warranted. See 38 C.F.R. § 3.159(c)(4)(iii) (2010). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither he nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim / that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Regardless of the RO's actions, the Board must make an independent determination on whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2010). The United States Court of Appeals for Veterans Claims (Court) has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim as in this case dealing with a claim for service connection. Evans v. Brown, 9 Vet. App. 273 (1996). However, it is the specified bases for the final disallowance that must be considered in determining whether the newly submitted evidence is probative. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for that last final disallowance of the claim. Id. New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In August 2004, the Ro denied servicer connection for bilateral hearing loss and for tinnitus. The Veteran was so informed that same month. The RO considered the Veteran's service medical and personnel records, records from the Social Security Administration (SSA), an August 2004 VA examination and private medical records. The service records did not show a hearing loss or tinnitus at service entry or at service separation. The VA examination showed bilateral sensorineural hearing loss by VA standards and also showed a finding of bilateral ringing tinnitus. The RO found that service connection was not warranted since there was no evidence to show either condition was incurred in or caused by service. The Veteran did not timely appeal the decision and it became final. The Veteran attempted to reopen his claims and this appeal ensued after the RO found that no new and material evidence had been received. Evidence added to the file since the August 2004 final denial includes a private audiogram dated in February 2008, which shows defective hearing, hearing testimony before the Board, and a September 2009 private audiological report which showed defective hearing bilaterally. The examiner also stated that the Veteran spent a considerable amount of time around very loud noises in the military and that it was more likely than not that the majority of his hearing loss may be due to high noise exposure to military arms. As to the tinnitus, the evidence of record since the last final denial is not relevant since they do not refer to the disorder. Thus they cannot serve as a basis for opening the claim. See, 38 C.F.R. § 3.156(c). As to the bilateral hearing loss, the private record dated in September 2009 is new and material. This record is new since it was not previously of record at the time of the previous decision. The evidence is material since it raises a reasonable possibility of substantiating his claim. This is because it relates to an unestablished fact necessary to substantiate the claim-a possible nexus between service and the bilateral hearing loss. Thus, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral hearing loss and to this extent the claim is granted. New and material evidence has not been received to reopen the claim of entitlement to service connection for tinnitus and the claim is denied. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran seeks service connection for bilateral hearing loss. He claims that exposure to acoustic trauma during service caused his current hearing loss. His DD 214 shows his MOS as heavy vehicle driver and thus exposure to acoustic trauma is conceded. He has been diagnosed with bilateral hearing loss by VA standards. There are two opinions of record regarding the etiology of the Veteran's hearing loss which are contradictory and neither of which provides sufficient basis for making a decision. The opinion of the August 2004 VA examiner that the Veteran's bilateral hearing loss is not related to service is inadequate since the basis of the opinion was that the Veteran stated that his hearing loss started after service. However, the absence of in-service evidence of hearing loss is not necessarily fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Service connection may be established upon a showing that such disability is medically related to service. See 38 C.F.R. § 3.303. The September 2009 private opinion that the majority of the Veteran's hearing loss may be due to high noise exposure during exposure to military arms is speculative. See 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. app. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). VA will provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service- connected disability; but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2010); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Based on the above, a clarifying opinion should be obtained. A remand for an examination and an opinion regarding the etiology of the Veteran's bilateral hearing loss is necessary. The appellant is hereby notified that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2010). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiology examination to be performed by a clinician who has not previously examined him. The claims file and a copy of this remand must be made available to the examiner for review and the examiner must indicate in the examination report that this has been accomplished. All indicated tests and studies should be accomplished. The examiner should provide an opinion as to the nature and etiology of the Veteran's bilateral hearing loss with complete rationale as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's bilateral hearing loss is related to his military exposure to acoustic trauma. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 2. Then the RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the requested report does not include fully detailed descriptions of pathology and all test reports, specific studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2009); See also Stegall v. West, 11 Vet. App. 268 (1998). 3. Following completion of the above, the claim should be readjudicated. If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The claim should be returned to the Board as warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs